The Oregon Divorce Blog » Grandparents

Do I Have The Right To Visit My Grandchildren? Oregon’s Third Party Custody Laws Part II

C. Sean Stephens — Sun, 10 Apr 2011 17:00:43 +0000

We previously blogged about grandparents and other third parties obtaining custody of children not legally their own. A third party custody case is the most difficult type to pursue, because of the constitutional protections given legal parents in making decisions regarding their children, including the decision to cut off contact between a child and a grandparent. What if you were visiting the grandchildren regularly, and for no legitimate reason, the parent decides to cut off all contact? Oregon allows grandparents and other third parties to request visitation and contact with children. It’s easier to obtain an order granting visitation and contact vs. obtaining custody, because of the lesser intrusion into the legal parent’s rights. These cases come down to (1) establishing an ongoing personal relationship, and (2) rebutting the presumption that the legal parent is acting in the child’s best interests by denying contact.

To establish an “ongoing personal relationship” under ORS 109.119, the third party must show that they have established ” [a] relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality.”

The same presumption that the legal parent is acting in the best interests of the child applies, even if the decision is to cut off a wholesome and healthy relationship. If the legal parent makes the decision to cut off contact with a child over the objection of a grandparent or other third party, the court considers the following nonexclusive list of factors in determining if the presumption has been rebutted.

The petitioner or intervenor is or recently has been the child’s primary caretaker;
Circumstances detrimental to the child exist if relief is denied;
The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor;
Granting relief would not substantially interfere with the custodial relationship; or
The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

The rebuttal factors to establish visitation and contact rights are easier to prove than the rebuttal factors to establish custody or guardianship.

Third party cases can be complex, and counter-intuitive, because the court’s initial consideration is not what is in a child’s best interests, but the legal rights of the legal parent. If you are faced with a lawsuit requesting visitation and contact with your child by a grandparent or third party, or are interested in getting visitation or contact with a child not legally yours, you should consult with an experienced family law attorney. The lawyers at Stephens Margolin PC have extensive experience in third party custody cases.

Can I Get Custody Of My Grandchildren? Oregon’s Third Party Custody Statute

C. Sean Stephens — Sat, 09 Apr 2011 18:32:09 +0000

As part of our Oregon Divorce practice, we talk to a lot of people interested in obtaining custody of children that are not legally their own. Frequently it is grandparents seeking custody of their grandchildren. A common scenario is where a son or daughter with social or chemical problems leaves a child with a grandparent for an extended period of time, and then suddenly wants to cut off all contact between the grandparents and grandchild. While grandparents seeking custody rights are a common scenario, Oregon’s third party custody statute does not restrict petitioners to just grandparents. Rather, anyone that has established a “child-parent relationship” with the child may ask for custody. Legal parents have constitutional rights in authority over their legal children, and are presumed to be acting in a child’s best interests, even if the “act” is to cut of contact between the child and a loving relative. These cases come down to two parts, (1) establishing a child parent relationship, and (2) rebutting the presumption that the legal parent’s decision to deny contact is in the child’s best interests.

To establish a “child-parent relationship” under ORS 109.119, the third party must show that they have established:

“[a] Child-parent relationship means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. However, a relationship between a child and a person who is the non related foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.”

In order to obtain custody over the objection of a legal parent, the third party must rebut the presumption that the legal parent is acting in the child’s best interest. The court considers the following nonexclusive list of factors in determining if the presumption has been rebutted.

The legal parent is unwilling or unable to care adequately for the child;
The petitioner or intervenor is or recently has been the child’s primary
caretaker;
Circumstances detrimental to the child exist if relief is denied;
The legal parent has fostered, encouraged or consented to the relationship
between the child and the petitioner or intervenor; or
The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

Third party cases can be complex, and counter-intuitive, because the court’s initial consideration is not what is in a child’s best interests, but the legal rights of the legal parent. If you are faced with a third party custody lawsuit, or interested in obtaining custody of a child, you should consult with an experienced family law attorney. The lawyers at Stephens Margolin PC have extensive experience in third party custody cases.

New Case Law – Third Party Visitation

Daniel Margolin — Wed, 23 Feb 2011 16:24:20 +0000

On February 23, 2011, the Oregon Court of Appeals issued an opinion regarding third party visitation claims. In Digby and Meshishnek, the nonparents, who had acted as foster parents for the children, were awarded visitation with two minor children by the trial court. They had asked for visitation due to having a “child-parent relationship” as set forth in ORS 109.119(10)(a). The requirements for demonstrating such a relationship are: 1. That the relationship existed within the six months preceding filing of the petition; 2. That the party making the claim lived in the same household as the child or had physical custody of the child; 3. That the party supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline; and 4. That the relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. The claim cannot be made by a nonrelated foster parent unless the relationship exceeded 12 months. A court must find that the nonparents have proved the “child-parent relationship” by a preponderance of the evidence.

The trial court awarded visitation to them based upon the grounds that they had established an “ongoing personal relationship” with the children as described by ORS 109.119(10)(e). To prove such a relationship a party must prove: 1. That the relationship lasted at least one year; and 2. That it was based on interaction, companionship, interplay and mutuality. This is, obviously, a much less strict test than the test required to prove a “child-parent relationship.” A court must find that the nonparents have proved the “ongoing personal relationship” by clear and convincing evidence.

The court of appeals held that the trial court erred in awarding visitation on the basis of an ongoing personal relationship. The statutes defining “child-parent” relationship and “ongoing personal relationship” have
separate requirements that must be shown by different burdens of proof, thus, an ongoing personal relationship is not “lesser included” within an allegation of a child-parent relationship.

Unfortunately, it is common for family law practicioners to gloss over the very technical legal aspects of claims. This case demonstrates the importance of having very qualified legal counsel who know the intricacies of pleading technicalities. The lawyers of Stephens Margolin P.C. have this level of technical expertise and are able to take cases from the trial court through the appellate courts.

The full opinion can be found here: http://www.publications.ojd.state.or.us/A139448.htm

New Case Law – Taking the kids back from Grandma

Daniel Margolin — Sun, 01 Mar 2009 22:36:44 +0000

As a Portland Oregon divorce law firm, Stephens Margolin P.C. is dedicated to keeping up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.

On February 25, 2009, the Oregon Court of Appeals published an opinion in Nguyen and Nguyen. The case is an appeal from a custody award to grandparents. The child’s mother appealed the trial court’s award of custody of the child to grandparents and the Oregon court of appeals agreed with Mother.

The grandparents had provided the majority of the child’s care for a number of years. Mother had a history of abuse from the child’s father and a lack of stability. She was arrested a few years prior to trial for a drug matter, but the charges were later dropped. The court held the Mother was not a suitable parent, and that grandparents were a better choice for the child. Unfortunately, the ruling was not in line with Oregon caselaw.

ORS 109.119 provides the requirements that a non-biological parent, such as a grandparent must meet in order to be awarded custody.

In order for nonparent petitioners to gain custody, they must overcome “a presumption that the legal parent acts in the best interest of the child.” ORS 109.119(2)(a). The court must find “by a preponderance of the evidence,” ORS 109.119(3)(a), that the presumption has been rebutted in order to grant custody to a nonparent over a legal parent’s objection. Finally, if the nonparent has established a child-parent relationship and overcome the presumption in favor of the legal parent, ORS 109.119(3)(a) provides that the court shall grant custody to the petitioner only “if to do so is in the best interest of the child.”

Here, the Oregon Court of Appeals held that at the time of trial, the grandparents did not prove that the mother was unable or unwilling to adequately parent T and that, under the totality of the circumstances, grandparents have not rebutted the statutory presumption that mother acts in the best interest of T, and that mother therefore cannot be deprived of custody in favor of grandparents.

The Court of Appeals remanded the case to the trial court for further evidence as to what a proper transition plan to return the child to mother should be.

The entire opinion can be found at http://www.publications.ojd.state.or.us/A138531.htm

The case teaches us that trial courts sometimes rule based upon emotion despite the clear legal requirements needed to award custody to a child’s grandparent. These cases are often overturned by the court of appeals. It does not matter whether the grandparents are the better parents, what matters is that the biological parent is adequate as a parent. It is crucial for both biological parents and grandparents, or other third parties seeking custody, to have competent legal counsel that provides them with objective advice regarding the potential risks of litigation.

The lawyers, including Daniel Margolin, who focuses part of his pratice on family law appeals, at Stephens Margolin P.C. can assist parties going through a third party or grandparents custody case or an appeal from such a case. All of the lawyers at the firm have experience with grandparent’s rights cases. As this case shows, it is crucial to have a competent attorney at both the trial court and appellate level. If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

Can I get custody of my child now if he or she is in danger?

C. Sean Stephens — Wed, 13 Aug 2008 04:52:38 +0000

As family law attorneys based in Portland, Oregon, we talk to a lot of parents with safety concerns about the other parent’s home. We hear questions about how to get custody quickly, or change a parenting plan quickly if a child is not safe with the other parent.

The court can establish custody or parenting time in divorces, annulments, legal separations, modifications, custody actions, filiation actions, and third party custody cases. If custody is established in these cases at the time of the final hearing, it may take months between the filing of the petition or motion and the court’s final decision. But what do you do if a child is in danger now, and a full evidentiary hearing is months away? Oregon courts provide for an emergency remedy if a child is in immediate danger of harm.

Oregon courts can award emergency custody even if there is no previous custody determination between the parties. ORS 107.097 provides in part that “[a] court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

(A) The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and
(B) The court finds, based on the facts presented in the party’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.”

Oregon courts can also award emergency custody even if there is already a custody judgment between the parties. ORS 107.139 provides in part that “[f]ollowing entry of a judgment, a court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

(A) A parent of the child is present in court and presents an affidavit alleging that the child is in immediate danger;
(B) The parent has made a good faith effort to confer with the other party regarding the purpose and time of this court appearance; and
(C) The court finds by clear and convincing evidence, based on the facts presented in the parent’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.”

The main difference between the two provisions is that pre-judgment no notice is required; while post-judgment you must make a good faith effort to talk to the other party about the appearance. If the court grants an emergency motion, the non-moving party is entitled to a hearing. The issue at the hearing is limited to whether or not the child was in an immediate danger at the time the emergency order was issued.

If you already have a parenting plan, you need the court’s permission to change it. You cannot simply refuse to return a child in violation of the parenting plan. The consequences for refusing to follow parenting plans are serious, and can include jail time in some situations. The emergency custody statutes do not offer much guidance to the courts, and judges in the same courthouse can have different interpretations of what both “immediate” and “danger” mean. You should immediately consult with an experienced family lay attorney if you believe your child is in danger of harm with the other parent.

Can I move out with the kids? The “Temporary Protective Order of Restraint” and “Status Quo Order”

C. Sean Stephens — Thu, 15 May 2008 04:46:29 +0000

As family law lawyers based in Portland, Oregon, potential clients ask us about if they can move out of the family home with the children, or if they can prevent a move. We hear questions like the following:

Can I move with the children out of the marital home?
Can the other parent move out with the children without my consent?
If we haven’t followed the parenting plan in our judgment, can I prevent the other parent from changing the agreed upon plan?
Can I prevent a move that disrupts the children’s routine?
Can I move and change the children’s routine?

This post was almost a “divorce myth” post for the sole reason there so much misinformation about moving away from the other parent with children. The answer is that you can move without the other parent’s permission, but Oregon provides two potential remedies to block a move out of the family home, or force a return of the children to the family home.

Prior to a final judgment, as part of a divorce, annulment, legal separation, or third party custody case, Oregon law allows a parent to obtain a temporary order called a “Temporary Protective Order of Restraint” The order is temporary because it is only in effect during a case. The statue, ORS 107.097, allows you to obtain a court order that prevents the other party from:

Changing the child’s usual place of residence;
Interfering with the present placement and daily schedule of the child;
Hiding or secreting the child from the other party;
Interfering with the other party’s usual contact and parenting time with the child;
Leaving the state with the child without the written permission of the other party or the permission of the court; or
In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.

With a few exceptions, if the other parent moves out of the house without your permission, you can use ORS 107.097 to force the children’s return to the home, and force a return to your pre-move level of contact with the kids.

During a modification of custody or parenting time (after entry of a final judgment), the court allows for entry of a “Status Quo Order” that is very similar to the “Temporary Protective Order of Restraint.” ORS 107.138 allows you to obtain a “Status Quo Order” in a custody modification action that prevents the other parent from:

Changing the child’s usual place of residence;
Interfering with the present placement and daily schedule of the child;
Hiding or secreting the child from the other party;
Interfering with the other party’s usual contact and parenting time with the child;
Leaving the state with the child without the written permission of the other party or the permission of the court; or
In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.

To obtain a status quo order, you must:

Notify the other party;
Give the other party an opportunity to contest issuance of the order;
File an affidavit that sets forth with specificity the information required by ORS 109.767 and the person with whom the child has lived during the preceding year and the child’s current schedule, daily routine and usual place of residence.
Give the other party 21 days notice before the date set for the hearing.

For both a “”Temporary Protective Order of Restraint” and a “Status Quo Order,” a “Child’s usual place of residence” means the place where the child is living at the time the motion for the temporary order is filed and has lived continuously for a period of three consecutive months, excluding any periods of time during which the noncustodial parent did exercise, or would otherwise have exercised, parenting time. A“Parent’s usual contact and parenting time,” “present placement and daily schedule of the child” and “current schedule and daily routine of the child” mean the contact, parenting time, placement, schedule and routine at the time the motion for the temporary order is filed.

If you are thinking of moving out of the family home with the children without consent, or the other parent moves out of the family home without your consent, you should consult with a family law lawyer to discuss the legal effect of the move in light of ORS 107.097 and ORS 107.138. The lawyers at Stephens & Margolin can help you with how these laws apply to your particular situation.

Information about the mandatory parenting classes in Multnomah, Clackamas, and Washington County, Oregon.

C. Sean Stephens — Sun, 10 Feb 2008 23:22:34 +0000

As a divorce lawyer in downtown Portland Oregon, I frequently get asked about the parenting class requirements for family law cases in Multnomah, Clackamas, and Washington county. Some people already know of the class requirement, some don’t. A common reaction on learning of the class is “Me? Need a parenting class? Why?” A series of questions usually follows. “What is the cost? How long is the class? Can I waive it? Will I have to attend with my spouse?” The following is our effort to summarize the court’s authority to require the class, the reasons behind the class, and provide information about the classes in the tri-county area.

ORS 3.425 gives each family court department (or presiding judge) the power to set up a family law education class for parents in family law cases. The purpose of the class is to inform parents about the impact of family restructuring on children in family law litigation. If the county establishes a class, the class must include at a minimum information about: (1) The emotional impact of a divorce or separation on children at different developmental stages, (2) Parenting during and after a divorce or separation, (3) Custody , parenting time, and shared parenting plans, (4) The effect on children of parental conduct, and (5) Mediation and conflict resolution. The class may be required in divorce, annulment, legal separation cases, custody or parenting time petitions, modification of custody or parenting time actions, and enforcement actions. Our three local counties in the metro area (Multnomah, Clackams, and Washington) have all adopted mandatory parenting class programs.

Multnomah County: The court’s rules about the class are located in Multnomah County Supplemental Local Rule 8.125. The class is required for parties to divorces, annulments, legal separations, petitions for paternity and custody or parenting time, and modification actions if a parent has not previously completed the class. The class costs $45 – $60, depending on how fast you register. The class is one session and takes three hours. Online information about the Multnomah County class can be found at Family Court Services website. You can register online, or register by phone by calling (503) 988-3037.

*** UPDATE ***

This is an older post, and someone from Multnomah County emailed me updated information. The fees went up in 2008 – they are now $55 if prior to filing (in multnomah county) or within first 60 days after filing. $70 over 60 days or if case is in another county/state. Also, the class is 3 1/2 hours.

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Washington County: The court’s rules about the class are located in Washington County Supplemental Local Rule 8.102. The class is required for the following cases where the parties have children under the age of 17: divorce, annulment, legal separation, petitions for custody or parenting time, modification of custody and parenting time, and filiation cases. The cost of the class is $145 per adult. You can pay for the class with Visa, MasterCard, debit card, and money orders. The class consists of four (4) ninety minute workshops. Classes are scheduled weeknight evenings and Saturday mornings. You can find the Registration packet for Kids’ Turn, the class schedule, and a FAQ here. You can register for the class by returning the above packet or by calling the Kids’ Turn office (503) 846-0665.

*** UPDATE ***

A reader pointed out to me that since the post was written in 2008, the cost of the class has increased to $210 per adult as of March 9, 2010, and the URL had changed. Thank you to those that bring updates to our attention.

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Clackamas County: The court’s rules about the class are located Clackamas County Supplemental Local Rule 8.015. The class is required for the following types of cases where the parties have a child under the age of 18: Annulment or dissolution of marriage actions, legal separation actions, petitions to establish custody or visitation, and post-judgment litigation involving custody or visitation. The cost of the class is $60, but is reduced to $45 if your register within 45 days of filing your case. The class is one session, 3 ½ hours, held Wednesday evenings from 5:30 to 9:00 p.m. and on Saturday mornings from 9:00 a.m. to 12:30 p.m. You can register on the web, by fax at (503) 650-5656, by mail, by phone at (503) 655-8415, or in person at 2051 Kaen Rd. Oregon City, OR 97045. The registration link is here. The FAQ put out by Clackamas County Family Court Services about the Parent Education Program is here.

Our recommendation is to take the mandatory class as early as possible in the process. You may learn something to help your kids, and you won’t irritate the court.